[Cites 9, Cited by 0]
Karnataka High Court
Sri N. Jayaram vs Sri B R Ramaswamy Gowda on 3 December, 2025
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
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WP No. 9439 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF DECEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY
WRIT PETITION NO. 9439 OF 2023 (GM-CPC)
BETWEEN:
1. SRI N. JAYARAM
S/O LATE NANJUNDAIAH
AGED ABOUT 60 YEARS
R/A NO.156/8, II CROSS,
II MAIN, ASHTAGRAMA RASTHE
KAMAKSHIPALYA
BENGALURU - 560 079.
2. SRI M. NAGARAJU
S/O LATE T. MUNIYAPPA
AGED ABOUT 54 YEARS
R/AT NO.L-119
13TH CROSS ROAD
LAKSHMINARAYANAUPRA
BENGALURU - 560 021.
3. SRI SAI SUBRAMANYA D.S
S/O LATE T VENKATA REDDY
AGED ABOUT 57 YEARS
Digitally signed R/A NO.1024, TULASI NILAYA
by NANDINI M
S II CROSS ROAD, IST MAIN
Location: HIGH SHANKAR NAGAR
COURT OF BENGALURU - 560 096.
KARNATAKA
...PETITIONERS
(BY SRI LAKANAAPURMATH CHIDANANDAYYA, ADV.)
AND:
SRI B R RAMASWAMY GOWDA,
S/O LATE B BETTASWAMY GOWDA
AGED ABOUT 69 YEARS,
R/A NAMMAMANE
DR RAJKUMAR NAGAR
B M ROAD KUNIGAL-572130.
...RESPONDENT
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WP No. 9439 of 2023
HC-KAR
(BY SRI SANTHOSH S. HUGI, ADV.,)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS
WHICH ULTIMATELY RESULTED IN PASSING OF TH IMPUNGNED
ORDER DTD 18.04.2023 IN OS NO.169/2022 BY THE LEARNED
SENIOR CIVIL JUDGE AND JMFC KUNIGAL ALLOWING IA NO.2 AND
DIRECTING TO RETURN THE PLAINT WITH LIBERTY TO APPROACH
COMPETENT FORUM VIDE ANNX -A.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN B
GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY
ORAL ORDER
1. The plaintiff is before this Court in this writ petition
filed under Article 227 of the Constitution of India with a prayer
to set aside the order dated 18.04.2023 passed on I.A.No.II in
O.S.No.169 of 2022 by the Court of Senior Civil Judge & JMFC,
Kunigal.
2. Heard the learned counsel appearing for the parties.
3. The suit in O.S.No.169 of 2022 is filed by the
petitioner herein before the jurisdictional Civil Court at Kunigal
seeking the relief of specific performance. In the said suit,
I.A.No.II was filed on behalf of the sole defendant under
Section 8 of the Arbitration and Conciliation Act, 1996 (for short
the 'Act, 1996) and the said application was opposed by the
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plaintiffs by filing objections. The trial Court vide the order
impugned has allowed the said application and has returned the
plaint with liberty to the plaintiffs to appear before the
competent forum. Being aggrieved by the said order, plaintiffs
are before this Court.
4. Learned counsel for the petitioner having reiterated
the grounds urged in the petition submits that there is not even
a prayer in the application to refer the dispute to the arbitrator
in terms of the Agreement dated 28.02.2018. The defendant
having disputed the very existence of the said document could
not have filed an application under Section 8 of the Act, 1996.
He submits that the alleged arbitration clause does not provide
for arbitration of the dispute. Therefore, the trial Court was not
justified in allowing I.A.No.II.
5. Per contra, learned counsel appearing for the
contesting respondent submits that in view of the specific
clause found in the agreement for sale dated 28.02.2018, the
trial Court was justified in allowing I.A.No.II. He submits that
even though the defendant has not admitted the said
agreement, it is the duty of the Court to refer the parties to the
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arbitrator, in the event it finds that there exists an arbitration
clause in the agreement on which plaintiff has placed reliance.
In support of his arguments, he has relied upon the judgment
of the Hon'ble Supreme Court in the case of SUNDARAM
FINANCE LIMITED AND ANOTHER V. T THANKAM -
(2015) 14 SCC 444 and also in the case of BRANCH
MANAGER, MAGMA LEASING AND FINANCE LTD. &
ANOTHER V. POTLURI MADHAVILATA AND ANOTHER -
(2009) 10 SCC 103.
6. Section 8 of the Arbitration Act reads as follows:-
"8. Power to refer parties to arbitration
where there is an arbitration agreement.--1[(1)A
judicial authority, before which an action is
brought in a matter which is the subject of an
arbitration agreement shall, if a party to the
arbitration agreement or any person claiming
through or under him, so applies not later than
the date of submitting his first statement on the
substance of the dispute, then, notwithstanding
any judgment, decree or order of the Supreme
Court or any Court, refer the parties to arbitration
unless it finds that prima facie no valid arbitration
agreement exists.]
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(2) The application referred to in sub-
section (1) shall not be entertained unless it is
accompanied by the original arbitration
agreement or a duly certified copy thereof:
2[Provided that where the original
arbitration agreement or a certified copy thereof
is not available with the party applying for
reference to arbitration under sub-section (1),
and the said agreement or certified copy is
retained by the other party to that agreement,
then, the party so applying shall file such
application along with a copy of the arbitration
agreement and a petition praying the Court to call
upon the other party to produce the original
arbitration agreement or its duly certified copy
before that Court.]
(3) Notwithstanding that an application has
been made under sub-section (1) and that the
issue is pending before the judicial authority, an
arbitration may be commenced or continued and
an arbitral award made.
7. The words used in Section 8(1) is that "If a party to
the arbitration agreement or any person claiming through or
under him". Therefore, Section 8 of the Act, 1996 can be
invoked by a party to the agreement or any person claiming
through or under him. In the present case, the defendant has
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disputed the very existence of the agreement and therefore he
could not have maintained the application under Section 8 of
the Act of Act, 1996. In addition to the same, reading of
Section 8 of the Act, 1996 would also go to show that, there
are certain other obligations on the party invoking Section 8
the Act, 1996 which is found in Section 8(2) of the Act, 1996.
8. From a reading of the obligations found in Section
8(2) of the Act, 1996 and the proviso provided there under
would also make it very clear that Section 8 of the Act, 1996
can be invoked only by a party who admits the agreement and
not otherwise.
9. In the present case, in the affidavit which is filed in
support of the application, the defendant has disputed the
existence of the very agreement on which he has placed
reliance for invoking Section 8 of the Act of 1996. In addition to
the same, perusal of the application would go to show that the
prayer made in the application is to dismiss the suit or return
the plaint for want of jurisdiction. There is no such prayer made
in the application to refer the parties for arbitration having
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regard to the alleged arbitration clause found in the agreement
for sale dated 28.02.2018.
10. The High Court of Allahabad In the case of BAL
KISHAN BANSAL V PRAMIT BANSAL & ANR - AIR 2006
ALLAHABAD 305 in almost identical circumstances where a
prayer was made in the application filed under Section 8(1) of
the Act of 1996 to dismiss the suit has observed in paragraph
Nos.10 and 20 as follows:-
"10. It is axiomatic that aforesaid
application is short of requirements and does not
fulfill the ingredients of the aforesaid section 8(1)
and 8(2) of the Act. Defendant/Applicant has not
expressed his desire to refer the dispute to
arbitration. There should have been an expression
of desire on his part to refer the matter to
Arbitration. The application on the face of it
cannot be termed as an application under Section
8 of the Act. The requirement of sub-section (1)
of section 8 is that the party first should apply for
enforcement of arbitration clause and also he
should so apply with promptitude not later than
when submitting his first statement. Words 'so
applies' and 'not later than' do show that there
should be an intention and willingness and
readiness on the part of the party to invoke
Arbitrationn Clause; to move in the matter quickly
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with speed and express his intention to invoke
Arbitration Clause without any delay.
20. In the application, giving rise to the
present revision, there was no request to refer
the matter to the arbitration as per arbitration
clause. A prayer "to dismiss the suit", in view of
the arbitration clause, would not satisfy the fourth
requirement of Section 8(1) of the Act, as
mentioned by the Apex Court in the case of P.
Anand Gajapathi Raju ((2000) 4 SCC 539 : AIR
2000 SC 1886) (Supra)"
11. In addition to the aforesaid, reading of the alleged
clause which is said to be a clause providing for arbitration of
the dispute involved between the parties, it is seen that the
said clause provided that, in the event of any dispute arising
between the parties, out of the agreement for sale dated
28.02.2018, the decision of the mediator Sri D Srinivasa
Murthy, Advocate would be binding on the parties. Therefore, a
doubt arises whether the said clause can be considered as a
clause which provides for arbitration of the dispute between the
parties which arise out of the agreement for sale dated
28.02.2018. Under the circumstances, I am of the opinion that
trial Court was not justified in allowing I.A.No.II. The
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judgments on which reliance has been placed by the learned
counsel for the respondent would not be applicable to the facts
and circumstances of the present case.
12. In the case of SUNDARAM FINANCE LIMITED
(supra), in paragraph No.8, on which reliance has been placed
by the learned counsel for the respondent, it is observed as
follows:-
"8. Once there is an agreement between the
parties to refer the disputes or differences arising out of
the agreement to arbitration, and in case either party,
ignoring the terms of the agreement, approaches the
civil court and the other party, in terms of Section 8 of
the Arbitration Act, moves the court for referring the
parties to arbitration before the first statement on the
substance of the dispute is filed, in view of the
peremptory language of Section 8 of the Arbitration Act,
it is obligatory for the court to refer the parties to
arbitration in terms of the agreement, as held by this
Court in P. Anand Gajapathi Raju v. P.V.G. Raju ".
13. From a reading of the aforesaid, it is apparent that
there should be an admitted agreement between the parties
and it is only then the disputes or differences arising out of
such an agreement can be referred to the arbitrator as
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provided under the arbitration clause under the said
agreement.
14. In the case of MAGMA LEASING FINANCE
LIMITED (supra), in paragraph No.17, the Hon'ble Supreme
Court has observed as follows:-
"17. Section 8 reads thus:
"8. Power to refer parties to arbitration where
there is an arbitration agreement.--(1) A judicial
authority before which an action is brought in a matter
which is the subject of an arbitration agreement shall, if
a party so applies not later than when submitting his
first statement on the substance of the dispute, refer
the parties to arbitration.
(2) The application referred to in sub-section (1)
shall not be entertained unless it is accompanied by the
original arbitration agreement or a duly certified copy
thereof.
(3) Notwithstanding that an application has been
made under sub-section (1) and that the issue is
pending before the judicial authority, an arbitration may
be commenced or continued and an arbitral award
made."
An analysis of Section 8 would show that for its
applicability, the following conditions must be satisfied:
(a) that there exists an arbitration agreement;
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(b) that action has been brought to the court by
one party to the arbitration agreement against the other
party;
(c) that the subject-matter of the suit is same as
the subject-matter of the arbitration agreement;
(d) that the other party before he submits his first
statement of the substance of the dispute, moves the
court for referring the parties to arbitration; and
(e) that along with the application the other party
tenders the original arbitration agreement or duly
certified copy thereof."
15. From a reading of the aforesaid, it is very clear that
only in the event of the party invoking Section 8 of the Act,
1996, completely complies the requirement of Section 8 of the
Act, 1996, then he can invoke the said provision of law. In the
case on hand, since the defendant has disputed very existence
of the agreement, it cannot be said that he has complied the
requirement of Section 8 of the Act, 1996. Under the
circumstances, I am of the opinion, the order impugned cannot
be sustained.
16. Accordingly, the following:-
ORDER
(i) The writ petition is allowed.
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(ii) The impugned order 18.04.2023 passed on
I.A.No.II in O.S.No.169 of 2022 by the
Court of Senior Civil Judge & JMFC, Kunigal
is set aside. Consequently, I.ANo.II is
dismissed.
Pending IAs' do not survive for consideration and
accordingly the same are disposed of.
Sd/-
(S VISHWAJITH SHETTY)
JUDGE
NMS
List No.: 1 Sl No.: 60
